Friday, November 9, 2018

Florida Supreme Court weighs process to pick new justices

In an hour-long hearing characterized by sometimes-intense exchanges, the Florida Supreme Court heard arguments Thursday about reopening the application process for three upcoming vacancies on the court.

The League of Women Voters of Florida and Common Cause are asking the Supreme Court to order a nominating commission to extend an application deadline and halt the current nomination process in light of a court order issued last month.

The Supreme Court unanimously ruled Oct. 15 that the next governor has the “sole authority” to appoint replacements for justices Barbara Pariente, R. Fred Lewis and Peggy Quince. The justices are all leaving the court in early January because they have reached a mandatory retirement age.

After Tuesday’s election, Republican Ron DeSantis is in line to succeed Gov. Rick Scott in early January. But DeSantis’ narrow win over Democrat Andrew Gillum is expected to head to a recount before a final winner can be determined.

The selection of the three justices has drawn heavy attention, as it could lead to a major ideological change on the Supreme Court. Scott initially argued that he had the power to appoint the three justices, but the Supreme Court ruling last month rejected that possibility.

The Supreme Court Judicial Nominating Commission, a nine-member panel appointed by Scott, set an Oct. 8 application deadline for candidates for the court vacancies. The commission on Friday is scheduled to finish interviewing the 59 judges and lawyers who applied for the positions. The expectation is that the commission could shortly advance a list of potential court nominees —- up to six names for each vacancy.

Chief Justice Charles Canady opened Thursday’s hearing by noting that the situation of having three justices retire on the same day at the end of a governor’s term is not likely to occur again because voters adopted a constitutional amendment on Tuesday that increases the mandatory retirement age for judges from 70 to 75.

Under the amendment, which takes effect July 1, justices and judges will have to leave the bench immediately when they reach age 75, rather than waiting for the end of their terms, which is the current process..

“That (three justices leaving at the same time) is not going to be happening in the future,” Canady said.

John Mills, a lawyer representing the League of Women Voters, acknowledged that such a situation would be unlikely. But he said it could occur, for instance, if multiple justices or appellate judges were rejected in merit-retention votes. Voters have never rejected a judge under the current retention system.

Raoul Cantero, a former justice who represents the nominating commission, defended that panel’s actions, noting it was following precedent in developing a list of court nominees in advance of the actual vacancies, which will occur on Jan. 8 when the new governor takes office.

“In fact, the practice uniformly for the last 20-plus years, has been that the JNCs start the process and even make the nominations before the justice or judge leaves office,” Cantero said.

Justice Ricky Polston asked Cantero to respond to an allegation that the nominating commission was ignoring its own rules by seeking applications and advancing a list of nominees before the vacancies occur.

Cantero said the commission was following the same procedure that has been historically used to avoid long-term vacancies on the state appellate courts.

“I think it has worked pretty well. Nobody has complained that it hasn’t worked for the last 20 years,” Cantero said. “Frankly, I think this is much ado about nothing. I’m still struggling to find out what we did wrong.”

But Lewis said he found it “troubling” that Cantero was advancing an argument that there is no limit on when nominating commissions can begin their work, saying it could lead to nominations years in advance of an actual vacancy.

“We’re playing word games here this morning. I’m asking you, with the theory that is being advanced, they could act at any time?” Lewis said.

Cantero said it would be “unreasonable” for a nominating commission to act years in advance of a vacancy, saying the process should begin when the vacancy is “imminent.”

Pariente raised the possibility that the Judicial Nominating Commission could reopen the nominating process itself, given the circumstances of three justices retiring. Pariente and Quince are only the second and third women to have served on the state’s highest court, while Quince is the only current African-American member.

Advocates for reopening the process have noted that only six African-Americans, 11 women and six Hispanics are among the 59 applicants.

“If you did that today (reopened the process), it would perhaps stop a great deal of this continuing controversy,” Pariente said, noting the “monumental” nature of the appointments. Daniel Nordby, a lawyer representing Gov. Scott, said the controversy could be resolved by Scott and DeSantis mutually working on the process and appointments.

In a brief filed with the court, the governor’s lawyers noted a similar arrangement took place in 1998 with an agreement between Gov. Lawton Chiles and incoming Gov. Jeb Bush on the appointment of Quince.

Scott and DeSantis “have both stated publicly that they would desire to work something out without litigation,” Nordby said.

But that drew a sharp question from Lewis.

“Is that the way our state should operate? A couple of politicians getting together and agreeing on what they want to do no matter what the Constitution says?” Lewis asked.

Canady was skeptical of arguments by the League of Women Voters and Common Cause that the nominating process has been “tainted,” because of unproven allegations of partisanship in the process.

“This idea of a tainted process is all totally speculative. It’s political rhetoric,” Canady said.

Mills acknowledged the allegations were unproven and would have to be verified in a different forum. But he said the issues surrounding the appointment process should be resolved by the court “so that in the future everybody can know what the rules are and the rules can be followed.”

The Supreme Court appointments are drawing extra scrutiny because they could shift the judicial direction of the state’s highest court for decades to come.

Pariente, Lewis and Quince are part of a liberal bloc, which now holds a slim 4-3 majority on the seven-member court and has thwarted Scott and the Republican-dominated Legislature on numerous occasions since the governor took office in 2011.

Another element of uncertainty has been added with the expected recount in the governor’s election. If Gillum somehow emerges as the winner through a recount, it will further complicate the court appointments.